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Wernowski v. Continental Can Co.

Decided: January 8, 1993.

KENNETH WERNOWSKI, PETITIONER-APPELLANT,
v.
CONTINENTAL CAN COMPANY, RESPONDENT-RESPONDENT



On appeal from the Division of Workers' Compensation.

Gaulkin, Havey and Stern. The opinion of the court was delivered by Havey, J.A.D.

Havey

In this workers' compensation case, petitioner Kenneth Wernowski appeals from a judgment dismissing his claim petition for physical and psychiatric injuries allegedly arising out of his employment with respondent Continental Can Company (Continental Can). Petitioner claims he suffered from aluminum toxicity as a result of his employment, as well as a traumatic stress disorder arising from his perception that he suffered from the disease. The Judge of compensation found that petitioner had not suffered from aluminum poisoning, and consequently dismissed both petitioner's physical and psychiatric claims. We affirm in part and reverse in part. We conclude that petitioner's claim of total or partial permanent disability attributed to his stress disorder must be reconsidered even though he failed to establish he suffered from a physical disability associated with his exposure to aluminum during his employment.

Petitioner worked for Continental Can from January 1971 to July 1986. He described the condition at the plant as "very misty, cloudy" and observed dust particles on his clothing and skin on a daily basis. On occasion he detected silver dust particles in his mucus. In the early 1980's, he developed nausea, migraine headaches and dizziness. He began to suffer weight loss and a numbness on the left side of his body. In October 1985, petitioner sought medical help from Dr. Milton Bronstein, an internist.

Dr. Bronstein conducted a series of blood tests which disclosed elevated aluminum levels which he attributed to petitioner's occupation. On June 23, 1986, petitioner's aluminum level reached ninety-two micrograms per liter, with the normal range being from two to twenty-five. Dr. Bronstein advised petitioner that he should not be working with aluminum. Consequently, petitioner left his employ with Continental Can on July 14, 1986. Subsequent blood-serum results disclosed aluminum levels of forty-six micrograms to less than five micrograms per

liter. Dr. Bronstein concluded that petitioner was totally disabled because of aluminum toxicity and associated anxiety.

Dr. Samuel Pollock, petitioner's psychiatrist, testified that petitioner suffered from "neurological residuals" and brain damage, attributable to his exposure to noxious aluminum fumes and dust. He fixed petitioner's disability at seventy-five percent partial total, neuropsychiatric. Dr. Roland Goodman, an internist, was of the view that the aluminum toxicity and petitioner's "severe neuropsychiatric condition" rendered him totally and permanently disabled. Respondent's expert, Dr. Howard Kippen, an internist, found no evidence of aluminum toxicity. He thus concluded that petitioner's depression and stress disorder were not associated with his place of employment. Respondent's psychiatrist, Dr. Allen Josephs, was of the same view, noting that although petitioner was "preoccupied" with the diagnosis of aluminum poisoning, he was neurologically "normal."

In dismissing petitioner's claim, the Judge of compensation focused primarily on whether plaintiff had suffered from aluminum toxicity as a result of his employment. The Judge rejected Dr. Bronstein's opinion that petitioner suffered from the disease, in part because the doctor did "not know what the air quality was at the plant." The Judge found the blood-serum tests of little significance, and attributed "great value" to Dr. Kippen's testimony that, although petitioner may have had elevated aluminum levels in his blood, there was no evidence of aluminum poisoning. Implicit in the Judge's findings is that, in the absence of competent proof that petitioner suffered from aluminum toxicity, his psychiatric disability was not compensable.

We are satisfied that the Judge's determination that petitioner did not suffer from aluminum toxicity as a result of his employment with Continental Can is supported by substantial credible evidence in the record as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965); De

Angelo v. Alsan Masons, Inc., 122 N.J. Super. 88, 89-90, 299 A.2d 90 (App.Div.), aff'd o.b., 62 N.J. 581, 303 A.2d 883 (1973). However, that finding is not dispositive of petitioner's stress disorder claim.

The question is whether petitioner's psychiatric disability is a "compensable occupational disease." That term is ...


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